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Burden of Proof for Unlawful Killing

Updated: Feb 16

In a significant case in the Supreme Court, the burden of proof for a verdict of unlawful killing at coroners’ inquests has been changed. By a majority of 3 to 2, the court has decided to reduce the standard of proof that a coroner or jury will need to reach a verdict of unlawful killing to the civil standard – the balance of probabilities – rather than the criminal standard – beyond reasonable doubt.

The case is that of R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46 and concerned the approach that is used regarding inquests into suicides. However, the three Supreme Court judges said that the same approach should be used to all short form conclusions, including unlawful killing.

What are short form and narrative conclusions?

A short form conclusion is a (usually) one-word or phrase verdict of an inquest that a coroner can deliver, including (but not limited to) accident, suicide, industrial disease, misadventure and natural causes. A short form conclusion is in contrast to a narrative conclusion, where the case is of a complexity that a short verdict will not suffice.

The facts of the matter

Maughan, the appellant, had a brother who was a prisoner and was found hanging in his cell. At the inquest into his death, the coroner felt that the jury could not reach a short form conclusion of suicide, because it was not possible to be sure beyond reasonable doubt that the deceased had intended to kill himself. He asked the jury to make a narrative statement on the circumstances surrounding the death on a balance of probabilities (the civil standard).

The jury said that the deceased had a history of mental health issues and – on a balance of probabilities – had intended to hang himself. Therefore, increased vigilance on the part of the prison service would have made no difference to the outcome.

Maughan applied for a judicial review to challenge the jury’s verdict, arguing that the coroner had been wrong to instruct the jury to apply the civil standard of proof, rather than the criminal one.

His application for judicial review was dismissed by the Divisional Court, which stated that the standard of proof in all suicide conclusions is the civil one. Not willing to accept this, Maughan took the case to the Court of Appeal (which upheld the decision, additionally ruling that the criminal standard applied to unlawful killing) and finally to the Supreme Court.

What the Supreme Court said

The Court ruled that the standard of proof to be applied in short form and narrative conclusions is the civil one rather than the criminal.

The court also said that the civil standard applies to short form and narrative conclusions on unlawful killings, even thought this was not an issue in Maughan’s appeal.

What the law says

The court said that neither the Coroners and Justice Act 2009 nor the European Convention on Human Rights required any standard of proof for inquest verdicts. Case law did suggest that verdicts of suicide and unlawful killing should require proof to the criminal standard, but a coroner’s inquest is not a criminal proceeding and the court concluded that previous case law is not binding on the Supreme Court.

In the Coroners (Inquests) Rules 2013, there is a form that the coroner has to use to record the outcome of an inquest. That form has explanatory notes and Note (iii) says that the standard of proof for short form verdicts of suicide and unlawful killing is the criminal standard (for all other conclusions, the civil standard should be used).

The court ruled that, Note (iii) notwithstanding, the short form conclusion of suicide should be on the balance of probabilities – the civil standard. They said that Note (iii) was a statement of the common law position (rather than a statute) and did not stop the courts from developing the common law in the usual way.

In order to ensure consistency between the verdicts made at inquests, the court also ruled that unlawful killing should be subject to the civil standard of proof.


The majority judgment brings the procedure on suicide inquests into the modern age. The previous insistence on a higher standard of proof for such inquests reflects the view of society in years gone by that there was something shameful about suicide and that the families of those who had taken their own lives would be best served by a system that gave them every opportunity to avoid that verdict. A higher standard of proof would serve that purpose.

These days, with a greater societal acceptance of the reality of suicide and the mental health issues that underlie it, other factors can be allowed to come into play, such as establishing the facts of the matter (the primary role of an inquest), uninfluenced by a desire to spare a family’s feelings, as well as the importance of obtaining accurate information on the rates of suicides in order that any insight they may reveal about the scale of the problem can be readily understood and addressed.

In addition, the majority verdict that the same standard must apply to the inquest verdict of unlawful killing will have significant implications. While the effects of this change will take some time to filter through into future inquest verdicts and the court cases that may arise therefrom, the areas where the change is most likely to be felt are those of deaths in police custody (possibly as a result of alleged misconduct) or workplace-related deaths.

As can be imagined, this will significantly alter the way that health and safety inquests are conducted and concluded, both in terms of the scope of the inquest and what the jury can conclude on the basis of the evidence that they have heard.

Jeff Swales, a solicitor in rradar’s Business Crime & Regulation team, commented:

“The reduction in the standard of proof means that there will be more Inquest verdicts of unlawful killing arising out of workplace deaths. Such a verdict is likely to adversely affect the reputation and potentially the finances of a company which is subject to such a verdict. This means that it will be more important for companies to be legally represented at all stages of Inquest proceedings. It may also result in more bereaved families choosing to be represented at Inquests, although they do face the difficulty that Legal Aid is not generally available for Inquests. A verdict of unlawful killing at an Inquest will make it much easier to bring a successful civil claim for damages. Another effect of the decision may be that in cases where a verdict of unlawful killing is a possibility, the Coroner is more likely to adjourn the Inquest until after the outcome of any criminal prosecution.”

Written by

Jeff Swales, Solicitor at rradar

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